Archive for January, 2012

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Hawaii legislative committee approves plans to revise state’s merit selection system, gender diversity on the bench, retirement ages

January 30th, 2012

Hawaii may very well join Arizona and Florida in putting forth revisions and revamping of their respective state’s merit selection systems for judicial selection in 2012. On Friday, January 27 the Senate Committee on Judiciary and Labor held hearings and unanimously approved a variety of constitutional amendments related to judicial selection and mandatory retirement ages for judges.

SB 2205 / SB 2209

One of the particular pieces of angst expressed by governors and others with state merit selection systems is the limitation on the names submitted by the merit selection commission. Arizona’s SCR 1001, for example, expands the number of choices for the governor from “not less than 3″ to “not less than 8″ (a two-thirds majority can reject an applicant and submit less than 8). Other proposals have sought similar expansions.

That is what sets Hawaii’s proposed constitutional amendment SB 2205 apart. Currently, the state’s judicial nominating commission sends “not less than four, and not more than six” names to the Governor for vacancies on the Supreme, Intermediate Appellate & Circuit Courts. For the state’s limited jurisdiction District Courts, the Chief Justice selects “from not less than 6″ names.

SB 2205, however, reduces the selection down to 3 in all instances/courts. Senator Clayton Hill, the chair of the Senate Committee on Judiciary and Labor, stated that by reducing the number “you reduce the politics”.

A companion constitutional amendment, SB 2209, would require the judicial selection commission disclose the names of and other statistical information regarding active nominees and applicants to fill justice and judge vacancies (amendment language in bold)

The deliberations of the commission shall be confidential with the exception of disclosing the names of nominees and the names of applicants to fill any justice or judge vacancies.  The commission shall disclose the names of active applicants to fill a justice or judge vacancy at the close of each application period as well as statistical information that serves the public interest, including but not limited to the total number, gender, and experience of applicants.

This issue of gender diversity is one the Hawaii Senate is on record as being concerned by. SR 26 and SCR 37, both adopted by the Senate in 2010, recited a litany of statistics regarding the gender diversity of the state’s bench and “strongly urged” then-Governor Linda Lingle “to use and consider gender equality when appointing judges and justices in the future…”

SB 2206

In 2006 Hawaii’s (heavily Democratic) legislature suddenly became interested in increasing the mandatory retirement age for the state’s judiciary. It may, or may not, have been a coincidence that the interest occurred right when the first Republican governor in 5 decades was about to appoint several judges and justices who were being forced out of office due to the mandatory retirement age of 70. SB 995 of 2006 to simply eliminate the mandatory retirement age was rejected 2-1 by voters.

In 2012, with a Democratic governor in office, SB 2006 was introduced to amend the state’s constitution and allow judges and justices to serve until age 80. If approved by voters, it would give Hawaii one of the highest mandatory retirement age in the U.S. (Vermont judges can serve until the end of the year they turn 90).

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Posted in Qualification & Terms, Selection

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Oklahoma judicial term limits bill could empty state’s top courts; entire Court of Criminal Appeals could be vacant

January 30th, 2012

Unlike governors (36 states, h/t Council of State Governments) and legislators (15 states, h/t National Conference of State Legislatures), no state judges are currently subject to term limits. That may change in Oklahoma if SB 1729 is adopted.

Under its provisions, all judges/justices of the state’s top appellate courts (Supreme Court for civil matters; Court of Criminal Appeals for criminal ones) would be limited to 12 years in office.

As of the effective date of this act, no Justice shall serve on the Supreme Court for a period of more than twelve (12) years…

As of the effective date of this act, no judge shall serve on the Court of Criminal Appeals for a period of more than twelve (12) years

Given that the judges/justices serve for 1 year or so initial terms (after merit selection appointment) and 6 years in subsequent terms, this would effectively limit them to only 1 initial term, 1 full term and a portion of a second full term.

Given that the effective date of the law is November 1, 2012, the effect would be to remove 2 of the 9 justices of the state’s Supreme Court: Justice Yvonne Kauger (appointed in 1984 and up for a retention election November 6) and Justice Joseph Watt (appointed in 1992).

The impact would be even greater on the Court of Criminal Appeals and could potentially clear the court entirely:

  • 2 of that court’s 5 judges, Judge Charles Johnson (appointed 1989) and Judge Gary Lumpkin (appointed 1988) would be out of office effective November 1, 2012.
  • The 3 remaining judges (Arlene Johnson, David B. Lewis, and Clancy Smith) are up for retention elections 5 days later on November 6, 2012. If they all lost (a possibility, given that Iowa saw 3 of its Supreme Court justices lose their retention election in 2010, all on the same day) the effect would be to empty the court.

SB 1729 has been prefiled with the legislature set to come into session February 6.

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Posted in Qualification & Terms

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Week ahead: Hearings on sharia/international law bans in KS, VA; showdown in CA on budget issues; WI may change chief justice selection

January 30th, 2012

Legislatures Coming Into Session

NONE

Committee Activity of Note

January 30

Alaska Senate Judiciary

SB 168 Alters geographic cost-of-living salary adjustments for justices of the supreme court and judges of the superior and district courts.

Arizona Senate Committee on Judiciary

SB 1152 Authorizes but does not require creation of homeless courts as divisions of existing courts.

SB 1310 Increases small claims jurisdiction from $2,500 to $10,000.

SB 1311 Increases justice of the peace civil jurisdiction from $10,000 to $25,000.

SCR 1032 (Constitutional Amendment) Increases justice of the peace civil jurisdiction from $10,000 to $25,000.

Kansas Senate Judiciary

HB 2087 Defines “foreign law,” “legal code” or “system” means any law, legal code or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals and applied by that jurisdiction”€™s courts, administrative bodies or other formal or informal tribunals. Provides “Any court, arbitration, tribunal or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions.” Provides “Nothing in this act shall be construed to disapprove of or abrogate any appellate decision previously rendered by the supreme court of Kansas.”

Virginia House Courts of Justice, Civil Sub-Committee

HB 631 Provides that court decisions and contracts and other agreements will be void as violative of the public policy of the Commonwealth where such decisions or contracts are based on foreign law, i.e., law applied in a jurisdiction outside of the United States, where the application of such foreign law would violate a person’s rights guaranteed by the United States Constitution or the Constitution of Virginia.

HB 825 Prohibits any Virginia court or administrative agency from applying the law of any jurisdiction outside of the United States and its territories unless the application is required by the United States Constitution, the Constitution of Virginia, or any federal or state law.

January 31

California Assembly

Last for Assembly to pass AB 1208, regarding Judicial Council’s power over state judiciary’s budget (details here)

Florida Senate Judiciary Committee

SB 410 Requiring that a litigant pay a specified surcharge in addition to any other cost incurred for filing court and other legal documents by means of paper documents instead of electronically filing the documents. Provides an exception for a person who is indigent.

Tennessee House Judiciary Committee

HB 173 Ends merit selection. Requires contested elections for all  judges, including appellate and supreme court judges.

February 1

Wisconsin Assembly Committee on Judiciary and Ethics (public hearing)

AB 424 Makes battery or threat to a court employee a Class I felony. Makes it a Class I felony to threaten to cause damage to a courthouse and if the threatened action could result in bodily harm to a judge or court employee.

Wisconsin Assembly Committee on Judiciary and Ethics (votes)

AJR 49 (Constitutional Amendment) Ends practice where chief justice is most senior justice of the supreme court. Directs the supreme court to elect a chief justice as the first order of business each time a justice is elected or reelected.

AB 101 Requires a municipal judge to be a licensed Wisconsin attorney.

AB 285 Increases maximum court fees assessed for ordinance violations in municipal courts from $28 to $38.

Wisconsin Senate Committee on Judiciary, Utilities, Commerce, and Government Operations (public hearing)

SJR 36 (Constitutional Amendment) Ends practice where chief justice is most senior justice of the supreme court. Directs the supreme court to elect a chief justice as the first order of business each time a justice is elected or reelected.

February 2

February 3

 

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Posted in Coming Week

Bans on court use of sharia/international law: 33 bills in 20 states to start 2012; review of all efforts since 2010

January 30th, 2012

This post has been updated. Click here.

2012 marks the third year in a row to see major legislative efforts to ban state courts from using sharia or international law. A recap:

2010

Write up of all 2010 efforts here

2010 saw three efforts make their way out of their respective legislatures. The Oklahoma constitutional amendment would never take force, having been struck down by a federal district court, a determination upheld by the Court of Appeals for the Tenth Circuit in January 2012.

  • Louisiana HB 785 & SB 460: “Foreign law” means any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the states or territories of the United States…A court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the United States.
  • Oklahoma HJR 1056 (Constitutional Amendment): Prohibits the courts to “look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider Sharia Law or international law.” Requires courts adhere only to the U.S. & Oklahoma Constitutions, federal and state law and regulations, and where necessary the laws and regulations of another state.
  • Tennessee HB 3768 & SB 3740: Defines “law, legal code, or legal system” means a law, legal code, or legal system used or applied in any jurisdiction outside of Tennessee, including any foreign state, jurisdiction, country or territory of the United States…Notwithstanding any law to the contrary, and subject to provisions of superseding federal treaties, any otherwise enforceable contract which incorporates any substantive or procedural law, legal code or legal system of another state, foreign jurisdiction or foreign country that would violate rights and privileges granted under the United States or Tennessee Constitution is declared to be against public policy of this state and is unenforceable in this state.

2011

Write up of all 2011 efforts here

Despite having far more bills introduced in 2011 than in 2010, there was only one such piece of legislation enacted

  • Arizona HB 2064 Defines “foreign law” as “any law, rule or legal code or system other than the constitution, laws and ratified treaties of the united states and the territories of the united states, or the constitution and laws of this state….a court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or of the united states or conflict with the laws of the united states or of this state.”

2012

15 sharia/international law bans were carried over from the 2011 session. Combined with 18 newly introduced bills this puts the issue front and center for the 2012 sessions. Already there has been activity, with the Florida Senate Judiciary Committee giving its approval to a ban.

Full roster of 33 bills introduced in 2012 in 20 states and their statuses after the jump.

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Posted in Jurisdiction, Other, Special Edition

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Showdown in California Assembly over Judicial Council’s budgetary power over state’s courts set for next week

January 27th, 2012

Angst and anger at the California Administrative Office of the Courts and the constitutionally-established Judicial Council will be coming to a head next week in the state’s Assembly. Under AB 1208, much of the Judicial Council’s power over local court budgeting and policy would be curtailed or ended with local courts given a veto over budget issues. According to an analysis written by the Assembly, AB 1208

  1. Deletes the existing provision of law that states that the Judicial Council shall retain the ultimate responsibility to adopt a budget and allocate funding for the trial courts and perform specified activities that best assure their ability to carry out their functions, promote implementation of statewide policies, and promote the immediate implementation of efficiencies and cost saving measures in court operations, in order to guarantee equal access to the courts.
  2. Deletes existing provisions which empower the Judicial Council to authorize a trial court to carry unexpended funds over from one fiscal year to the next, and instead provides that unexpended funds shall be the funds of that trial court, which may carry those unexpended funds over from one fiscal year to the next. Prohibits those funds from being reallocated or redirected without the consent of the management of the trial court.
  3. Requires the Judicial Council, or its designee, to allocate 100% of the funds appropriated for support of trial court operations according to each court’s share of statewide operational funding. Provides that all funds, once allocated, are funds of the trial court, and authorizes courts to transfer funds between functions, line items or programs as directed by management of the trial court.
  4. Deletes existing provisions relating to the manner in which the Judicial Council allocates funding for trial court operations, and instead requires that the amount allocated to each trial court from the amount appropriated for trial court operations be equal to the pro rata share of the prior fiscal year’s adjusted base budget, except as provided.
  5. Requires the Legislature, based on the information submitted in the Governor’s proposed budget, and prior to the allocation of funds to each local trial court, to specify, in each annual Budget Act, the funding amounts to be allocated for programs of statewide concern from the total funds appropriated for trial court operations by the Legislature.
  6. Prohibits the Judicial Council, or its designee, from withholding or expending any portion of the total funds appropriated for trial court operations by the Legislature for any statewide information technology or administrative infrastructure program that was not identified in the annual Budget Act, unless the Judicial Council, or its designee, first obtains the written approval of 66 2/3% of a proportional representation of all local trial courts as determined by the number of judges in each court.

Introduced in 2011, the bill has been stalled since May of last year, however time is running out. The state’s constitution (Art. IV, Sec. 10(c)) requires bills introduced in the first year of a legislative session be adopted by its originating house by January 31 of the second year. This is confirmed by the Assembly’s own deadline calendar as being Tuesday of next week.

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Posted in Rule Making Authority, Salary & Budget, Structure Changes

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West Virginia considers creating an intermediate appellate court, Virginia considers getting rid of theirs

January 27th, 2012

Of the 50 U.S. states, 40 have an intermediate appellate court (IAC), generally (but not always) called the “Court of Appeals”. Two states have been actively trying to get their own IACs. The first, Nevada, has been trying for decades but has been unable to get voter support for a constitutional amendment to create or allow the legislature to create such a court.  A fourth attempt is currently in the works.

The other state is West Virginia. Creation of an IAC (tentatively entitled the “Intermediate Court of Appeals”) has bounced around the legislature since at least 1999 (HB 3008 of 1999; HB 200B of Second Special Session of 2003) but picked up a great deal of attention in 2010 (HB 3269; HB 4619; SB 589; SB 645) and 2011 (HB 3150; HB 3165) with the state’s senate approving one version (SB 307) that has been reintroduced as part of a larger “Civil Justice Reform Act” in 2012 (SB 420). Under this bill,  “all appeals shall be reviewed and a written decision on the merits issued by either the Supreme Court or Intermediate Court as a matter of right except for [certain appeals as specified in statute]…”

Meanwhile, in the name of cost savings, the Commonwealth of Virginia is considering abolishing their IAC. Under SB 630 the current Court of Appeals would end effective October 2012. According to the blog of the Virginia Lawyers’ Weekly, the change would keep the current judges in their respective offices until the end of their terms, but with no apparent work to do after October of this year. The prime sponsor told the VLW Blog “when the state is cutting services to children the judiciary ought not be immune from the budget ax” and criticized the court for having in his view few if any judges with experience in criminal, domestic or workers compensation practice prior to selection to the court.

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Posted in Structure Changes

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Vote to change way Wisconsin picks its chief justice is now back on committee agenda

January 27th, 2012

In early January I noted an expected vote in the Wisconsin Assembly Committee on Judiciary and Ethics on a plan to change the way the state’s chief justice was selected (currently, most senior justice serves). I also noted the near last-minute cancellation of that vote.

The latest agenda for that Assembly committee, however, indicates the vote is now back on for Thursday, February 2.

 

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Posted in Coming Week, Selection

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Despite already passing ballot item for 2012 election, Arizona legislature takes up debate over judicial elections/merit selection again

January 27th, 2012

2011 proved highly contentious when it comes to judicial elections. One state that had presumably settled the issue (legislatively speaking) was Arizona, which sent to the November 2012 a proposal to revise the state’s merit selection system, increase judicial terms, and increase the mandatory retirement age for judges.

SCR 1001 of 2011 was approved in April, before the state’s Supreme Court overturned an effort by the state’s governor and senate to remove from office the chair of the state’s redistricting commission.

Early indications are that SCR 1001 may now be taken off the ballot and replaced with something different. Already introduced by the chair of the Senate Appropriations Committee is SCR 1034 of 2012, a constitutional amendment to outright end merit selection in the state. In addition to ending the state’s merit selection system, it would also undo the provisions of SCR 1001 extending judicial terms and mandatory retirement ages.

The amendment is currently pending in the Senate Judiciary Committee.

 

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Posted in Qualification & Terms, Selection

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Issue 6:4 is out

January 26th, 2012

Issue 6:4 is here.

  • Jury nullification makes it out of New Hampshire Senate and back to House
  • Oklahoma tries again to increase small claims jurisdiction
  • Plans to raise mandatory judicial retirement ages advance in FL, die in VA
  • Virginia may split $5 court technology fee with $4 staying locally
  • Florida tackles issue of e-filing and e-storage
  • West Virginia tries to come up with new ways to pay of public financing of supreme court races
  • Latest bill to abolish Tennessee’s existing judicial disciplinary body

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Posted in Weekly Edition

South Dakota State of the Judiciary: “South Dakota, however, continues to weather the financial storm while still providing its citizens necessary access to its courts.”

January 26th, 2012

The National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

Through an unnumbered report adopted by both the House and Senate, the South Dakota legislature met in joint session January 11 for the purposes of hearing the State of the Judiciary Address of Chief Justice David Gilbertson.

Highlights of the Chief Justice’s speech (full text here) below the fold.

» Read more: South Dakota State of the Judiciary: “South Dakota, however, continues to weather the financial storm while still providing its citizens necessary access to its courts.”

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Posted in State of the Judiciary

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